Jordan v. City of Cleveland

• Decision Date: 06 July 2006
• Docket Number: No. 04-3436.,No. 05-3808.,No. 04-3389.,04-3389.,04-3436.,05-3808.
• Citation: 464 F.3d 584
• Parties: Emmett JORDAN, Plaintiff-Appellee/Cross-Appellant, v. CITY OF CLEVELAND, Defendant-Appellant/Cross-Appellee. Emmett Jordan, Plaintiff-Appellant, v. City of Cleveland, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

464 F.3d 584

Emmett JORDAN, Plaintiff-Appellee/Cross-Appellant, v. CITY OF CLEVELAND, Defendant-Appellant/Cross-Appellee.

Emmett Jordan, Plaintiff-Appellant, v. City of Cleveland, Defendant-Appellee.

No. 04-3389.

No. 04-3436.

No. 05-3808.

United States Court of Appeals, Sixth Circuit.

Argued: April 18, 2006.

Decided and Filed: July 6, 2006.

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ARGUED:

Jose M. Gonzalez, City of Cleveland Law Department, Cleveland, Ohio, for Appellant. Dennis R. Thompson, Christy B. Bishop, Thompson & Bishop, Akron, Ohio, for Appellee.

ON BRIEF:

Jose M. Gonzalez, Amy E. Marquit Renwald, Theodora M. Monegan, Gail D. Baker, City of Cleveland Law Department, Cleveland, Ohio, for Appellant. Dennis R. Thompson, Christy B. Bishop, Thompson & Bishop, Akron, Ohio, for Appellee.

Before: MOORE and GIBBONS, Circuit Judges; SHADUR, District Judge.^*

OPINION

MILTON I. SHADUR, District Judge.

This opinion treats with three appeals, all stemming from the suit brought by Emmett Jordan ("Jordan") against his former employer, the City of Cleveland ("Cleveland"), charging racial discrimination, racial and retaliatory harassment and retaliation in violation of Title VII of the Civil Rights Act (42 U.S.C. §§ 2000e-2000e-17), 42 U.S.C. § 1981 and Ohio Rev. Code Ann. §§ 4112.02 and 4112.99. Jordan's racial discrimination claims were dismissed by the district court via summary judgment. Then, after a 13-day trial on Jordan's five surviving counts, the jury found in Jordan's favor on three of them.

In Case No. 04-3389 Cleveland appeals from the denial of its Fed.R.Civ.P. ("Rule") 50 motion and argues that the jury was incorrectly instructed on Jordan's retaliatory harassment claim. In Case No. 04-3436 Jordan cross-appeals the district court's refusal to permit him to put on evidence of economic damages.¹ And finally, in Case No. 05-3808 Jordan appeals the district court's determination and award of "reasonable" attorney's fees. For the reasons discussed below, we AFFIRM (1) the district court's denial of Cleveland's Rule 50 motion and (2) its rejection of Cleveland's objection to the retaliatory harassment instruction, we REVERSE the district court's rulings on economic damages and attorney's fees, and we REMAND the case for further proceedings consistent with this opinion.

Background²

Cleveland's Division of Fire ("Division") comprises six battalions, four on the east side of the Cuyahoga River and two on the west side (J.A. 196).³ Battalions are numerically designated, and each is headed by a Battalion Chief (id.).⁴ Each battalion consists of a set of companies that are physically located at numerically designated station houses and are headed by a Captain (id). Firefighters in the companies are assigned to one of three 24-hour shifts (A, B and C), with firefighters typically working a one-day-on, two-days-off schedule (J.A. 197). Although the Captain heads the station house, he or she works only a single shift, with the other two shifts being run either by a subordinate captain, by a roving officer or by an "acting Lieutenant" (a firefighter designated as a Lieutenant) (J.A. 198, 2437-38).

Even though 51% of Cleveland's population is African-American, less than 22% of its firefighting force was black. That disparity was reflected to an even greater degree among the Division's officers as of February 2004: Although two out of seven Assistant Chiefs were black, at least one of them had been promoted only after filing a discrimination suit, and similarly there were only three black Battalion Chiefs out of a total of 29, two black Captains out of a total of 62 and 25 black Lieutenants out of a total of 178 (J.A. 2244-46).⁵ Most of the black officers and black firefighters work in station houses in Battalion 5, pejoratively labeled "Monkey Island" (J.A. 1594-95, 1667-68, 2389, 2535).

There are generally no black officers and very few black firefighters assigned to houses on the west side of the city (J.A. 2402-06, 2777-83). Jordan, however, was one of the exceptions to that pattern. In 1987 the Division hired Jordan and sent him to work on the west side (J.A.1934, 1936-37). While stationed there Jordan was called "Sambo," was accused of being a "Welfare Firefighter" and was subjected to a number of offensive racial jokes and racist graffiti (J.A.1945-47). For example, at 36's house there was a "Wall of Hate," a partition erected by white firefighters with derogatory comments directed toward black firefighters—indeed, that "Wall" remained in place until 1999, when one of the two black Captains in the Division tore it down (J.A. 2544).⁶

Jordan also experienced more general isolation while stationed at west side houses. Dinnertime and relaxation in the television room were particularly difficult (J.A. 1948). For example, now-Battalion-Chief Daryl McGinnis (one of the three blacks in that position) recalled being on a white shift and asking what was for dinner, whereupon the cook told him: "Coon soup—a combination of a tomato, a black man, and a pepper" (J.A. 2253). Moreover, black entertainment channels on the television were typically blocked, and when a black firefighter would venture into the television room his white co-workers would drift out, leaving him alone (J.A. 1592, 1948, 2304-05).

In 1995 Jordan transferred to 11's house (J.A.1959). When he first arrived there, both the house and Jordan's shift were largely white (id.). But after his arrival white firefighters on his shift transferred out and several black firefighters transferred in (J.A.1960). As this was happening, Jordan claimed, "the atmosphere started to change there" (id.). For example, white firefighters started to lower the temperature as far as the thermostat would go before Jordan's predominantly black shift came on to work, and when Jordan and his co-workers complained they were told to "just get climatized" (id.).

Although the strife lessened as more white firefighters transferred out of 11's house and black firefighters transferred in, the calm was short-lived. In September 1998 Lieutenant James Hart ("Hart") was sent to 11's house and assigned to Jordan's shift A (J.A.1963). On the second day that he was assigned to shift A, Hart announced that he wanted "certain people" off of his shift and that he would do whatever it took to drive those firefighters out (J.A. 2756, 2763). As one firefighter noted, those "certain people" were almost exclusively the black firefighters, including Jordan;⁷ Hart was particularly confrontational, disrespectful and caustic toward them (J.A. 2763).

Jordan sought out Captain Kelly ("Kelly") and Battalion Chief Michael Heil ("Heil") to address the problems he was having with Hart. Kelly dismissed Jordan's complaints of racial discrimination, while Heil "shooed" Jordan away (J.A.1969-70). Indeed, shortly after speaking with Jordan, Heil held a roll call during shift A at 11's house during which he called 11's house a "shithouse," told the men they were stuck with Hart and warned them that if they ever went over his head and took their race complaints "downtown," they would regret it (J.A. 1832-33, 1971, 2745). Hart additionally and specifically warned Jordan that if he complained it would only create "trouble" for him (J.A. 2745).

Nonetheless, in October and November 1998 Jordan (along with a host of other black firefighters at 11's house) filed internal Form 10s and a charge with the Division's EEOC officer Paul Stubbs ("Stubbs"), targeting Hart with asserted discrimination and harassment (J.A. 2744-52, 2754-55, 2757).⁸ These complaints were given to Division Chief Kevin Gerrity ("Gerrity") to be appropriately forwarded within the Division.

Hart's treatment of Jordan only further soured after Jordan filed those charges. Hart went out of his way to assign Jordan demeaning chores and "extra assignments, extra duties...duties that...generally required a full company to do like clean the ladders, as the driver of the truck I was then ordered to do them myself" (J.A. 1979). Hart would additionally suspend policy to require excess drilling, but only on the days that Jordan was working (J.A. 2805).

In late 1999 Jordan still had not heard anything about the EEOC charges he had filed in 1998 (J.A.1988). Jordan inquired at Cleveland's EEOC, where he was told that there was no record of any discrimination charges filed by him or anyone else at the Division in 1998 (J.A.1988-89).

Meanwhile Jordan's problems at 11's house continued. On December 7, 1999 he was inexplicably denied "acting time" via the placement of a roving officer on his shift—a placement that caused the acting time to be assigned to that officer. Firefighters receive acting time—they act as officers with regard to responsibility, with a corresponding increase in pay—when a shift otherwise lacks an officer, either because the officer worked a different shift or because there is no roving officer assigned to the shift. According to Division policy, acting time is generally granted on the basis of (1) vacancy in the house and (2) seniority in the battalion (J.A. 3296).

On December 8 Jordan submitted a Form 10 and wrote a "Letter of Complaint" to Gerrity asking why he had been denied acting time the day before (J.A. 1990-92, 2772-74). In his letter Jordan explained that after investigating the matter, he learned that on December 7 a roving officer also had been placed at 26's house, which otherwise would have had a black acting Lieutenant (J.A.1991-92). As a result of that placement of roving officers in 11's and 26's houses, two firefighters more junior to Jordan were in charge of shifts elsewhere in the city, in contravention of Division policy (J.A. 2773). Not only was Jordan never given an explanation for the denial of acting time, but he was also expressly told by new house Captain Robert Readinger ("Readinger") not to push the matter or he would be removed from 11's house (J.A.1994-95).⁹

Over the...